Cross-Examination of Prosecution Witness 3The Defense cross-examined Prosecution witness 3, Rustom Ali Mollah. He testified that his father Rohom Ali retired in 1986. He did not know when his father began his job. Rustom testified that he did not complete primary school. He could not remember whether he went to the New Eskaton circuit house in 1971 or not. Rustom testified that he went to the recourse field on 7 March 1971 to hear the speech of Sheikh Mujib Rahman. He said that he does not know who the leader of Awami League or Chhatra League (student wing of Awami League) in Mohammadpur area was in 1971. He said that during the election of 1970 he was in Dhaka with his father. He testified that he did not know who won the Mohammadpur area elections in 1970. He claimed that in 1971 Khan Mojlish was the principal of the Physical Institute. He testified that now his son Tarek Khan Mojlish is the principal of this institute. Rustom denied that Tarek Khan Mojlish is older than him. The witness acknowledged that his father no longer lives with him and that he lives Rustom Ali’s sons from his first wife. He said that his first wife died. He could not specify the year when Tarek Khan Mojlish became the principal of the Physical Institute. He said that in 1971 the length of a course at the Mohammadpur Physical Training institute was 10 months and now the length of this course is 1 year. He did not know which subjects were taught in this course but said that it is basically a training center to teach gym teachers.

Rustom testified that in 1971 he and his family lived in a house inside the campus of the Physical institute. He said that during the Liberation War classes were suspended at the institute. In 1971 Rustom Ali said that he saw Tarek Khan Mojlish, but he was younger at that time. He confirmed that Khan Mojlish is still alive. He testified that during 1971 Badsha Miah, Luthfur Rahman Miah, Malek, Abdul Huq Bhuiya were teachers at the Institute. He could not name any students from that time.

Rustom testified that on the night of 25 March, at about midnight, he was inside the grounds of the Physical Institute when the Pakistani Army set up their camp there. Rustom stated that outside of the campus he had no friends because Biharis lived in the Mohammadpur area. He said he believed that besides his father Suruj Mia, Hanif was also a Bengali employee, but that his family lived outside of the Institute in their village home. He added that the wife of one Bengali employee resided in this quarter. Rustom said that detained people were kept captive inside the gymnasium, but that there was no guard. He said that he did not know who controlled the keys to the gymnasium.

Rustom testified that he could not name any of the intellectuals, artists, or doctors who were allegedly brought to the camp. He testified that he did not talk with the women who were brought to the camp but claimed that he saw them. Rustom testified that he was not familiar with any of the women he saw.

At this stage the Defense counsel Mizanul Islam objected to the comments of the Prosecutors. The Chairman of the Tribunal asked them not to repeat the answer given by the witness.

Rustom testified that he first heard the term ‘Razakar’ 4 of 5 months after the beginning of the Liberation War when recruits began to receive training at the Institute. He said that he did not remember the name of the trainer but claimed they were Punjabis. He said that in every batch 2000-3000 people received training for 15 to 20 days. During the training courses the Razakars stayed in the hostel and in tents set up on the field of the Institute. Rustom could not estimate how many batches of recruits received training, but said that training continued until the end of the war. He said that the main gate of the Institute was guarded by members of the Pakistani army, Razakars and Al-Badrs. However, he could not name anyone who received training there. He claimed he was not friends with any of them. Rustom testified that a Colonel was in-charge of Army. He said that he had heard of Muhurikhola but never visited the place. Additionally he testified that he had heard of Bakutta but does not know where it is located.

At this stage again the Defense objected to comments from the Prosecution because a Prosecutor was trying to correct the witness’ answer. When Defense counsel Mizanul Islam raised his objection, Prosecutor Altaf Uddin Ahmed called Mizanul Islam ‘Beadob’ (insolent). The senior Defense counsel became angry. Eventually both sides apologized. The Chairman of the Tribunal cautioned the Prosecutors against using such insults before the Tribunal.)

Rustom testified that in the first three or four months of the Liberation War he stayed inside his home or occasionally visited the market located in Mohammadpur. He said that he had saw some Bengali owned shops at the market but did not remember their names. He acknowledged that his father gave an interview in BTV World program titled ‘Chatonai Muktijuddho’. He said he did not know whether his father also provided an interview to Diganto Television. He also said he did not know whether the present principal of the Physical Institute, Tarek Khan Mojlish, had given any interviews.

Chief Prosecutor vs. Gholam AzamSenior Defense counsel Abdur Razzaq began the Defense’s Closing Arguments on Charge 1. He began by acknowledging that the Sayedee Judgment established that criminal prosecutions cannot be barred by a time limitation. However, the Defense argued that their argument was that Prosecution should give a sufficient explanation for the delay. Razzaq stated that the Prosecution had never attempted to explain the delay.

Charge No 1The Defense read out Charge 1 which details alleged meetings between Gholam Azam, General Tikka Khan and other pro-Pakistani affiliated leaders. The Defense submitted that meeting with Tikka Khan is not an offence, nor is creating an auxiliary force or forming a Nagorik Committee. Razzaq submitted that the Charge 1 stated that Gholam Azam “conspired to commit above-mentioned crimes” but questioned what actual crime was alleged. He submitted that the Charge Framing Order alleged that Gholam Azam commited conspiracy but no where specified which crimes he conspired to commit. Therefore the Defense argued that the Charge Framing Order is defective.

The Defense argued that the charge must specifically state how many people were allegedly killed, exterminated, raped, or tortured, yet charges against Gholam Azam fail to provide such details. Razzaq submitted that the Charge Framing Order is just the English-translated version of the Formal Charge submitted by the Prosecution. Razzaq referred to the indictments in the ICTR cases of Nahimana, Barayagwiza and Ngeze and compared them to the Charge Framing Order against Gholam Azam. The Defense argued that that the Charge failed to specify the date of the alleged crimes, the occasion of the crimes, the identity of the victims and the nature of Gholam Azam’s participation. The vagueness of the Charge Framing Order prejudiced the Accused.

The Defense also submitted that the format of the Charge violated section 16 of the ICT Act 1973, which requires the Charges to contain a sufficient level of detail so as to give the Accused notice of the matter with which he is charged. Razzaq directed the Tribunal’s attention to Charge Framing Orders issued by Tribunal 2, when the current Chairman of Tribunal 1 was himself was a member, to illustrate the level of specificity required in the charges. The Chairman then interjected that maybe the Tribunal did not provide such specific details because Gholam Azam had been charged under the doctrine of superior and command responsibility. The Defense replied that the nature of a charge still should not be changed. The Defense stated s that the defect of the Charge Framing Order can be cured, but that if it is not it will result in prejudice to Gholam Azam.

The Defense then discussed the different exhibits submitted by the Prosecution in support of Charge 1. They argued that Exhibit-33 is news report published in the Daily Azad on 5 April 1971 based on the news broadcast in the Radio Pakistan. Razzaq noted that during cross-examination the Investigating Officer admitted that he failed to collect the actual transcript of the Radio Pakistan broadcast. The Defense read out the reports and argued that the news report does not detail the content of the meeting or existence of any agreement between Gholam Azam and the officers of the Pakistan army to commit atrocities. The report merely states that there was a meeting between the Accused and Tikka Khan, which the Defense notes does not in itself constitute an offence. The Defense also read out the relevant sections of testimony from Prosecution witnesses 1, 2 and 3 and submitted that none testified about the existence of an agreement to commit atrocities or about the components of such an agreement.

The Defense also noted that Exhibit 34 is a news report published by the Daily Azad 6 April 1971, on the basis of a press release from the martial law authority. However, again the Investigating Officer admitted that he failed to collect the original press release. The Defense argued that the report and the testimonies of the prosecution witnesses do not show anything other than a meeting between Gholam Azam and Tikka Khan.

Before adjourning for the day the Chairman asked the Defense to use its time tomorrow to specify which aspects of the description of the Accused, as contained in the Charge Framing Order, are disputed and which parts are admitted as true.